Hoffman v. Smith

• Decision Date: 14 December 1983
• Docket Number: No. 15916,15916
• Citation: 172 W.Va. 698,310 S.E.2d 216
• Parties: Olen R. HOFFMAN, et al. v. James SMITH, et al.
• Court: West Virginia Supreme Court

Page 216

310 S.E.2d 216

172 W.Va. 698

Olen R. HOFFMAN, et al. v. James SMITH, et al.

No. 15916.

Supreme Court of Appeals of West Virginia.

Dec. 14, 1983.

Syllabus by the Court

1. Where one acquires an easement over the property of another by an express grant, the use of that easement must be

confined to the terms and purposes of the grant.

2. Where a grant of a right-of-way allows the grantor to maintain gates across it, there is a duty imposed on the grantee to close the gates after passing through them.

3. " 'Where the width of a right of way is not specified in the grant, not determinable therefrom, the scope and purpose of the deed creating it, the situation and use of the property, and the intent of the parties will be considered, so as to provide a reasonable, safe and convenient way for the purposes for which it was intended.' Palmer v. Newman, 91 W.Va. 13, 112 S.E. 194 [ (1922) ]." Syllabus Point 3, Rhodes Cemetery Ass'n v. Miller, 122 W.Va. 139, 7 S.E.2d 659 (1940).

4. "The servient tenement can not be burdened with the occupancy of a greater width than is reasonably necessary for the uses for which a right of way thereover is reserved as an easement, where no width is defined in the reservation." Syllabus Point 4, Wiley v. Ball, 72 W.Va. 685, 79 S.E. 659 (1913).

James A. Kent, Jr., Morgantown, for appellants.

James T. Dailey, Jr., Kingwood, Mike Magro, Jr., Morgantown, for appellees.

MILLER, Justice:

This is an appeal by Olen R. and Gladys Hoffman from an order entered by the Circuit Court of Preston County on October 12, 1982. By that order the court ruled that James and Connie Smith had a twenty foot wide right-of-way across the Hoffmans' farm. The court also ruled that the Smiths could replace gates along the right- of-way with cattle guards. ¹ On appeal, the Hoffmans claim that the court erred in allowing the Smiths to replace gates with cattle guards. ² They also claim that the court erred in ruling that the Smiths' right-of-way was twenty feet wide when the evidence indicated that the actual width was less than twenty feet. We agree with the Hoffmans' contentions and we reverse the decision of the Circuit Court of Preston County.

The Hoffmans are the owners of a farm located in Preston County, which has been in their family for a number of generations. On July 1, 1907, M.G. Hoffman, the appellants' predecessor in title, granted to Joseph I. DeWitt, the Smiths' predecessor in title, a right-of-way across the Hoffman farm. The grant stated that the right-of-way was to be 165 rods (2722.5 feet) in length, but did not indicate a width. It provided that the exact location was to be determined by the parties. It also stated: "Where gates and bars are placed, they are to be maintained and kept closed by the parties hereto their heirs and assigns." (Emphasis added) ³

From the record, there appears to be no difficulty with regard to the use of the right-of-way through the ensuing years until the Smiths acquired the dominant estate in July, 1971. On or about August 21, 1981, Mr. Smith, without seeking prior court approval, removed the gate from the southern end of the right-of-way. On or about September 25, 1981, the gate at the northern end was torn down.

As a result of Mr. Smith's actions, the Hoffmans instituted an action in the Circuit Court of Preston County praying that the court establish the width of the right-of-way and that the Smiths be required to replace the gates that had been torn down.

With regard to the gate issue, we begin with the general rule that where one acquires an easement over the property of another by an express grant, the use of that easement must be confined to the terms and purposes of the grant. We discussed this point in Shock v. Holt Lumber Co., 107 W.Va. 259, 262, 148 S.E. 73, 74 (1929):

"There can be no question that the rights of one claiming an easement by express grant are limited within the scope of the privilege. The extent of the servitude is determined by the terms of the grant. 9 R.C.L., 787. 'Where an easement exists by express grant its use must be confined to the terms and purposes of the grant.' 19 C.J., 974. Roberson v. Shepherd, 33 W.Va. 307, 317 ; Watts v. Johnson, etc., Real Estate Corporation, 105 Va. 519, 524, 54 S.E. 317. 'As has been previously stated, when a right of way has been acquired by grant, it must be used according to the terms of the grant; ...' Wood on Nuisances, section 164."

This basic rule has been followed in a number of jurisdictions. See, e.g., Bitello v. Lipson, 80 Conn. 497, 69 A. 21 (1908); Swift v. Coker, 83 Ga. 789, 10 S.E. 442 (1889); Grafton v. Moir, 130 N.Y. 465, 29 N.E. 974 (1892); 25 Am.Jur.2d Easements and Licenses § 73 (1966); 28 C.J.S. Easements § 75 (1941).

It has also been recognized that where a grant of a right-of-way allows the grantor to maintain gates across it, there is a duty imposed on the grantee to close the gates after passing through them. Phillips v. Dressler, 122 Ind. 414, 24 N.E. 226 (1890); Bina v. Bina, 213 Iowa 432, 239 N.W. 68 (1931); Reed v. Flynn, 205 Ky. 783, 266 S.W. 644 (1924); Jones v. Edwards, 219 Or. 429, 347 P.2d 846 (1959).

In Bina v. Bina, supra, the defendants, not unlike the Smiths, decided that it was unnecessary to close the gates because the cattle would not escape. The court enjoined them from leaving the gates open and stated:

"Manifestly appellees were mistaken about their duty to shut the gates, because the condition in the deed in reference thereto is mandatory and in no way subject to appellees' discretion or judgment as to when or why the same should be closed. Even though there appears no necessity for closing the gates, nevertheless appellees must obey the mandate in the deed with reference to that condition of the grant. Without doubt appellees, when exercising judgment concerning the necessity for closing the gates, have persistently left the same open in violation of the deed's mandates." 213 Iowa at 436, 239 N.W. at 70.

The general rule is that unless there is specific language in the grant of an easement to the contrary, the grantor of a right-of-way over farm land retains the right to erect gates, provided they do not unreasonably interfere with the use of the easement. We stated in Collins v. Degler, 74 W.Va. 455, 461, 82 S.E. 265, 267 (1914):

"Freedom in the use of the right of way over farming land is not unreasonably interferred [sic] with or restrained by the use of gates, when the grant of the right has no provision forbidding them. Why? Because the very character of the land makes gates essential to the proper and reasonable use of the way. They are, in other phrase, the custom of the business."

See also Annot.; 25 Am.Jur.2d Easements and Licenses § 91 (1966); 28 C.J.S. Easements § 98(b) (1941), 52 A.L.R.3d 9(1973).

Moreover, even where a right-of-way over farm property has been obtained by prescriptive use the servient owner has the right to erect gates in a reasonable manner. Mitchell v. Bowman, 74 W.Va. 498, 82 S.E. 330 (1914). ⁴

Thus, under the foregoing law with regard to agricultural property, even where there are no gates when the easement was granted and no express language in the grant permitting the servient owner to erect gates, the servient owner is still permitted to do so. Here, the right to maintain gates and the obligation to close them is expressly contained in the grant of the right-of-way. The Hoffmans clearly have the right to maintain the gates and to require that they be kept closed by the Smiths.

In their brief, the Smiths cite three cases in support of their position that they should be permitted to replace the gates on the Hoffman property with cattle guards. The first case, Craig v. Kennedy, 202 Va. 654, 119 S.E.2d 320 (1961), was decided under a Virginia statute which specifically authorized any person having an easement across the land of another to replace, at his own expense, any gate with a cattle guard. We have no such statute.

In the second case, Jones v. Edwards, supra, the court inferred that if it could be shown that a cattle guard was as effective as a gate in turning livestock, then such a device might be considered a lawful replacement for a gate. The court, however, refused to settle the point because there was an insufficient factual record.

In the third case, Mize v. Ownby, 189 Tenn. 207, 225 S.W.2d 33 (1949), there was evidence that gates placed across the right-of-way substantially interfered with the use of it by the owner of the dominant estate. The court concluded that under the circumstances of the case the gates could be replaced by cattle guards. The court's decision provided that if the cattle guards did not perform the functions for which they were intended then the owner of the servient estate could apply for a restoration of the gates.

In neither the Jones case nor the Mize case did the easement grant contain any express language regarding gates. Consequently, in these cases, the court was not controlled by the law of express easements where the language limits the scope of the grant. This is the rule that binds us in this case. The grant creating the easement across the Hoffman property specifically provided that the gates "are to be maintained and kept closed." We believe that the trial court erred in granting the Smiths the right to replace the gates with cattle guards.

We believe the law is too well settled with regard to upholding limitations contained in a written easement to permit us to ignore the language of the easement grant setting the maintaining of gates and the closing of the same. Furthermore, even if it were demonstrated that cattle guards are as effective as gates in securing livestock,...